양심 및 종교에 따른 의료인과 의료기관의 권리 : 낙태시술거부권을 중심으로

Abstract

This research is about the various views on the rights of medical personnel and institutions to refuse to perform abortions based on their conscience and religious beliefs, which should be reflected when establishing the relevant laws pursuant to the decision by the Constitutional Court that criminal abortion is unconformable to the Constitution. The Constitution and the International Human Rights Law guarantee the freedom of conscience and of religion as fundamental rights and their excessive prohibition would be unconstitutional. In addition, medical professionals, as they vow in Declaration of Geneva and sincerely consider the respect for life as the highest value. Not allowing them to refuse to participate in abortions, therefore, would make them get seriously confused. In most countries including some OECD member states, conscientious objection to abortion is granted as a law. In this context, the Constitution of Republic of Korea as well, should recognize as a law that medical personnel and institutions have the right to refuse to perform abortions on grounds of conscience and religious beliefs. When establishing such law, it should be made sure to remove unconstitutional elements from it and guarantee women’s right to self-determination and access to health care. To this end, it would be desirable for a nation to respect the medical staff and institutions refusing to perform abortions based on their conscience and religious beliefs and to allow them to be registered for their approval whereas it needs to have those providing the service in each region to ensure the medical accessibility of pregnant women. And by providing the right to refuse to perform abortions to not only medical personnel but also medical institutions, the confusion should be minimized related to operating the institutions and protecting patients’ access.